Even if the government were to be empowered with a court order, it would not get details like for what purpose a person authenticated his identity.Samanwaya Rautray | ET Bureau | August 02, 2017, 08:29 IST

The government cannot track or spy on citizens using Aadhaar data as it is technically impossible, the agency that handles the biometric information told the Supreme Court on Tuesday.

Aadhaar naysayers argue that its mandatory all-pervasive nature would make India a totalitarian state as it would give the government power to track citizens in real-time.

“I will demonstrate that this is impossible even if the government wants to,” Additional Solicitor General Tushar Mehta, appearing for the Unique Identity Development Authority of India, told a nine-judge bench which is debating whether privacy is a fundamental right or not. “The claim of surveillance, tracking does not stand,” he said. He argued that the repository of all biometrics would be a statutory body.

Even if the government were to be empowered with a court order, it would not get details like for what purpose a person authenticated his identity, he said.

Mehta also argued that in an online world, there was no privacy as such, whether the court holds it to be fundamental right or not. He also informed the court that the government set up a high-level committee headed by former top court judge BN Srikrishna to examine key data-protection issues and ways to deal with those.

The debate came up after the government claimed in court while defending the Aadhaar scheme that citizens had no fundamental right to privacy. Those opposed to Aadhaar sharply contested this, prompting the chief justice to set up a nine-judge bench to adjudicate on the issue.

Should the top court hold that it is a fundamental right, the government will have to prove that it passes the test of reasonable restrictions under which such a right can be curtailed. That will be decided by a regular bench. The government has insisted that privacy was a “valuable”, “common law” right, but not a fundamental right.

“Not all aspects of privacy can be elevated to the status of a fundamental right,” attorney general KK Venugopal has said. Several BJP-ruled states, such as Gujarat, Madhya Pradesh and Maharashtra, have also espoused this view. Some Congress-ruled states and West Bengal have called upon the court to declare privacy a fundamental right.

On Tuesday, senior advocate CA Sundaram, appearing for Maharashtra, argued that privacy was a relative concept. “A poor person may choose subsidised food grains over whether he can have a higher wall to protect his privacy,” he argued.